Artway v. Attorney General
83 F.3d 594
3rd Cir.
1996
Check Treatment

*1 departure. upward starting point See United sentence as the stitutes an for a down- (1st Quinones, assistance, 26 F.3d departure States v. ward for substantial re- Cir.1994). then, Conceptually, appeal on this departure flects an pre- extreme from the Weng challenges the reasonableness of an sentencing range, departure scribed such a upward departure admittedly significant was reasonable appropriate and this case. (1) combined of: achieved effect appellants’ have remaining We considered impose decision to the maxi- district court’s appeal contentions on this and have found sentence, rather than a mum sentence within Accordingly, them to be without merit. range twenty-seven thirty- guideline to judgment of the district court is affirmed. (2) months, count; on each and three depart to court’s decision from the district regime § sentence 5G1.2

concurrent

treating of consecutive a sentence terms as from starting point which to calculate an Weng’s appropriate cooperation reduction Alexander A. ARTWAY with the Government. v. reviewing departure In a from the The ATTORNEY GENERAL OF the (1) Guidelines, we consider: whether the rea JERSEY; STATE OF NEW Chief Of departs the district court for sons offered Woodbridge Township, Police Of New ing degree are “of a kind or Jersey; Superintendent The Of The New upon justify appropriately depar relied Jersey Police, Attorney State General of (2) ture”; findings the factual whether 'un Jersey Superintendent New and of the derlying the district court’s reasons are Police, Appellants New State (3) erroneous; whether, clearly giving and No. 95-5157. court,” to the “considerable deference district departure the extent reasonable. Alexander A. ARTWAY Tropiano, v. 50 F.3d States (2d Cir.1995). Weng does not contend that upon inappropriate relied the district court The ATTORNEY GENERAL OF the clearly fact; findings factors or erroneous JERSEY; STATE OF NEW Chief Of only

we therefore need consider the reason Woodbridge Township, Police Of New admittedly significant upward ableness of the Jersey; Superintendent The Of New Jer departure in this case. sey Police, State Chief of Police of Woodbridge Township, Jersey, Ap New that, We conclude based on the rec pellant in No. court, ord before the district a substantial upward departure was not unreasonable. On Alexander A. ARTWAY conviction, manslaughter the district (1) multiple court took into account resulted; § (policy deaths see U.S.S.G. 5K2.1 The ATTORNEY GENERAL OF the (2) statement); grounding the intentional JERSEY; STATE OF NEW Chief Of foreseeable, ship it made but Woodbridge Township, Police Of New likely, result, that deaths would see id. On Jersey; Superintendent Of New Jer- count, alien-smuggling the district court sey Police, Artway, State Alexander A. (1) properly took into account that the condi Appellant in No. 95-5195. smuggling voyage danger tions on the were Nos. 95-5194 and 95-5195. (2) inhumane; multiple ous deaths and (3) injuries resulted; smuggling voy Appeals, United States Court of age substantially involved more than 100 Third Circuit. application § aliens. See U.S.S.G. 2L1.1 note May sum, 5. In although the district court’s deci sion impose statutory Poritz, maximum on T. Attorney Deborah General of count, each and to use a Jersey, argued, Joseph Yannotti, consecutive-term New L. As- *2 SLOVITER, General, Judge, Attorney Rhonda S. Berlin- Present: Chief sistant Finkel, BECKER, Etzweiler, STAPLETON, MANSMANN, er-Gold, Larry Stephan B. General, Trenton, NJ, GREENBERG, SCIRICA, COWEN, Attorneys for Deputy NYGAARD, ALITO, ROTH, LEWIS, Jersey in No. 95- Attorney of New General McKEE, SAROKIN, Judges, 5157. Circuit SHADUR, Judge.1 District Flaster, argued, Richard L. Ru- Neal H. Weiss, din, Jeremy Weiner Lesniak and G. SUR PETITION FOR PANEL REHEAR- NJ, Parsippany, for Chief of Police of Wood- ING RE- WITH SUGGESTION FOR Jersey, in

bridge Township, New No. 95- IN HEARING BANC 5194. BECKER, Judge. Circuit Attorney, Hochberg, Faith States petitions rehearing for filed Alex- Leone, argued, George Rabner and S. Stuart Artway ander in No. 95-5195 and Newark, Attorneys, Assistant United States Attorney Jersey General of New and the NJ, Hunger, Attorney Frank W. Assistant Superintendent Jersey of the New State Po- General, Wendy M. Leonard Schaitman and lice in Nos. 95-5194 and 95-5195 Keats, Staff, Depart- Appellate United States having judges been submitted to the who Justice, Division, Washington, ment of Civil participated in this the decision of Court and DC, America, for United States of Amicus judges to all the circuit other available Curiae in No. 95-5157. service, judge active and no who concurred Berman, Rose, Mudge, Geoffrey S. Guth- having rehearing, the decision asked for rie, Ferdon, City, & New York for Alexander majority judges circuit of the the circuit Kanka, Kanka, Zim- Maureen Richard Dick regular having service active voted for mer, Deal, Cunningham, Randall Nathan banc, rehearing by petition the court in Dunn, Fowler, Tillie Thomas Man- Jennifer rehearing Judges for is DENIED. Green- ton, Molinari, Saxton, Christopher Susan Jim Alito, berg, Nygaard, and Sarokin would Smith, Amici in No. 95-5157. Curiae grant rehearing. Judge dissenting Alito’s rehearing sur denial is attached. Gibbons, argued, Lawrence S. John J. Romberg, Christopher Lustberg, Jonathan

Walsh, Deo, Dolan, Crummy, Griffinger Del DENIAL OPINION SUR Vecchione, Newark, NJ, & for Alexander A OF REHEARING Artway in No. 95-5195. ALITO, Judge, dissenting: Circuit Chen, argued, Rutgers Ronald K. Consti- full This case should be reheard Clinic, Litigation Rutgers University tutional Rehearing appropriate court. banc Law, Newark, NJ, School of for American question excep- when a case “involves a Jersey, of New Amicus Civil Liberties Union 35(a), importance,” R.App. tional Fed. Pr. Curiae No. 95-5195. constitutionality of the and the provisions Megan’s Law indis- Paulsen, Scatchard, Capehart R. & Glenn question putably meets this standard. This P.A., Trenton, NJ, Senate, for New those, obviously important as for such Amicus in No. 95-5157. Curiae Artway, subject to Alexander who Vaeeo, Attorney Dennis C. General requirements. It is also of enormous York, Graffeo, A. State of New Victoria Solic- Kanka, Megan importance to children like General, Schiff, Deputy H. itor Peter Solici- named, law was and to their after whom the General, Oser, Attorney tor Andrea Assistant parents. General, Department of New York State Seven-year-old Megan disappeared Kanka Law, NY, York, Albany, of New State day in 1994. near her home on a summer Amicus Curiae No. 95-5157. talking was last seen to a next-door She neighbor, Timmendequas. The next Jesse panel rehearing only. 1. As to day Timmendequas was arrested percussions regardless and con- they jus of how are Megan he had limed great

fessed that into his enough.” tified —are 81 F.3d at by promising puppy. to show her a home I am doubtful that it is confession, According raped he then determine that a punish measure constitutes Only after Timmendequas’s and killed her. *3 solely Moreover, ment based on its effects. I parents Megan’s arrest did learn that he was panel am convinced that the has misinter offender, that multiple sex he had assaulted preted Department Corrections California — 1982, nearly young girl and killed another Morales, U.S. -, 1597, 131 v. 115 S.Ct. that other two men and the with whom he (1995), precedent L.Ed.2d 588 the on which sharing was the house were also convicted panel’s the effects test is based. sex offenders whom he had met incar- while Is it to conclude that a measure cerated. “punishment” constitutes solely based on its These events and other similar offenses “sting”? effects or certainly possi- It is not prompted Jersey Legislature the New to en- governmental ble to conclude that a action is community provisions act notification (Even non-punitive based on its mild effects. appeal. that are at issue in this Similar laws a mild example, criminal sentence —for or- states, by have been enacted other and relat- dering a pick up defendant to litter legislation passed ed has been at the federal park on spring day a beautiful unques- —is constitutionality level. The of the New Jer- tionably punishment.) Is it pos- nevertheless sey provisions upheld by has been the New sible to determine that a measure constitutes Poritz, Jersey Supreme Court. Doe v. 142 “punishment” based on its harsh I effects? (1995). 1, However, N.J. 662 A.2d 367 skeptical. am It is settled that gov certain panel’s may in this ease decision well result having ernmental actions severe effects are provisions. the invalidation of these Fol- “punishment.” instance, not For pretrial de decision, lowing panel’s the United States tention, though quite harsh, sometimes District Court for District of New “regulatory, penal.” United States v. enjoined complying officials from state with Salerno, 739, 746, 2095, 481 U.S. 107 S.Ct. rehearing them. The denial of in this case 2101, (1987). 95 L.Ed.2d 697 So is the revo that, absent means of course some interven- professional cation of a occupational or li Court, ing by Supreme panel’s action cense, York, Hawker 189, 18 v. New 170 U.S. subsequent decision control proceedings will 573, (1898), S.Ct. 42 L.Ed. 1002 or the termi panels the district court and before of our benefits, nation of Security Social Flemming court until another occasion for in banc re- Nestor, 603, 1367, 363 U.S. 80 S.Ct. 4 meantime, view arises. In the a law that was (1960), L.Ed.2d 1435 though even the effects Jersey Legislature enacted the New of these actions can be devastating. It is grave deal with what it viewed as a and deportation, also settled that “however severe imminent threat will remain in constitutional consequences,” its implicate does not the Ex may go limbo and unenforced. I find this Post Facto Clause. Shaugh Harisiades v. prospect unacceptable. 580, nessy, 594, 512, 521, 342 U.S. 72 S.Ct. 96 (1952) Whether the provi- added). also, L.Ed. 586 (emphasis See Megan’s sions of comport Law with e.g., the Ex Lopez-Mendoza, INS v. 1032, 468 U.S. Post easy question. Facto Clause is not an 3479, 3483, 104 S.Ct. 82 L.Ed.2d 778 panel opinion’s (1984); ques- discussion of this Eby, 32, 39, Mahler v. 264 U.S. thoughtful scholarly, tion is 283, 286, (1924) (“It its effort S.Ct. 68 L.Ed. 549 is well to develop grand theory unified “punish- settled deportation, may while it be bur ment” Jeopardy, under the Double Excessive alien, densome and severe for the is not Fines, Ex Post Facto punishment.”). Clauses is ambi- In view precedents, of these doubts, however, tious. I serious have grave con- I have panel doubts whether the cerning portions critical panel’s analy- correct that a may measure be held to consti sis. I particularly am panel’s troubled “punishment” tute under the Ex Post Facto conclusion that a may measure simply constitute Clause “negative reper because its “punishment” if “negative its “effects” or regardless re- they justi- of how are cussions— [401, 797, 799, enough.” Artway, 81 U.S. 397 57 S.Ct. great supra, 81 L.Ed. fied —are (1937); Florida, 1182] F.3d at 1263. Miller v. 482 U.S. 423 (1987); [107 S.Ct. 96 L.Ed.2d 351] Moreover, panel’s that the am convinced Weaver, Graham, 24 [101 S.Ct. test, may else be said its effects whatever (1981).” Morales, 67 L.Ed.2d 17] favor, Supreme supported is not -, U.S. at 115 S.Ct. at 1601. The Su- no evi- decision Morales. see Court’s Court, however, preme distinguished these that Morales was meant to dence whatsoever ground they cases on the involved laws proposition adopt far-reaching that a purpose that “had the and effect of enhanc- “punish- be held to constitute measure ing range terms,” prison of available solely post purposes facto based ment” for ex whereas the amendment at issue in Morales Certainly on its effects. the Court’s *4 “simply ‘alter[ed] the method to be followed any expressly does not embrace such broad fixing parole release date under identical reading I think the best of proposition, and -, substantive standards.’” Id. at 115 opinion is a much narrower one. (citations omitted).2 at 1602 S.Ct. concerned a 1981 California statu Morales eligibility pa tory regarding amendment for rejected argu The Court then Morales’ hearings. con role Morales had twice been ment that Ex “the Post Facto Clause forbids murder, killing first in 1971 for victed of any legislative change any that has conceiva killing girlfriend and then 1980 for affecting prisoner’s punish ble risk of dismembering elderly an who had woman at -, ment.” U.S. 115 S.Ct. at 1602. prison him while he was befriended argument The Court noted that this would pa him who had married after he was require “any of invalidation of a number of — U.S. -, at roled. 115 S.Ct. (and inevitable) perhaps minor mechanical at the time of his Under the law effect changes might produce that some remote conviction, he would have been entitled 1980 impact prisoner’s expected risk of on a term parole hearing every year beginning in to a confinement,” “including of such innocuous at -, at 1989. Id. 115 S.Ct. adjustments changes membership as to the amendment, however, permitted the 1981 Terms, of the Board of Prison on restrictions hearings to defer for Board of Prison Terms may prison prisoners the hours that use the years cir- up to three under certain limited library, law reductions to the duration of the viz., cumstances, prisoner if a had been con- parole hearing, restrictions on the allot- time involving than one offense victed of more right ted for a convicted defendant’s of allo- taking if found that it of a life and the Board sentencing judge, page cution before a expect parole that was not reasonable to objections pre- to limitations on a defendant’s granted during intervening would be reports seeking a sentence or on documents years. denying parole In Id. Morales at-, pardon governor.” Id. 115 from the 1989, found he these the Board that satisfied at 1603. It was in this context that the S.Ct. hearing and thus his next criteria deferred question legis- that “the of what Court wrote years. for three Id. adjustments “will held to be of suffi- lative argued application transgress to him cient to the constitutional Morales that the moment ‘degree.’” prohibition’ amendment violated the Ex Post must be a matter of 1981 Clause, chiefly (emphasis original) (quoting Beazell v. “relie[d] Facto and he on a Id. Ohio, 167, 69, holding legislature 70 trilogy of cases that a 269 U.S. S.Ct. (1925)). may punishment’ L.Ed. 216 The Court then concluded not stiffen the ‘standard already applicable to crimes that have been that the 1981 amendment created California Lindsey Washington, “only speculative and attenuated committed. See the most post expressly Lindsey, the ex 2. The disavowed Weav stressed that "the focus of Court er, “sug inquiry legislative is not on whether a and Miller to extent those decisions facto change ambiguous gested produces sort of ‘disad- that enhancements to the measure of some any change punishment post vantage,’ facto ... but on whether such criminal fall within ex prohibition they operate or in- because to the ‘disad alters the definition of criminal conduct penalty by punisha- vantage’ which a crime is of covered offenders.” Id. at - n. creases the (citations omitted). at And ble.” Id. 115 S.Ct. 1602 n. 3 producing prohibited possibility see, effect tion will likely be. What we are to fear, increasing punishment measure of for “findings” are district court based on conjectural and that “such really covered crimes” bits of prove evidence that little about likely effects” were “insufficient” establish an ex long effects over the term of a Id. post program community violation. facto notification. This is a unedifying prospect. most interpret standing Morales I do not as sweeping proposition any that reasons, measure For disagree with the may “punishment” be held constitute un court’s refusal to rehear this case in bane. solely der the Ex Post Facto Clause based on Rather, I

its effects. think that Morales is a Judge Judge GREENBERG and narrow that means decision when a join opinion. NYGAARD in this retrospectively “change measure does

sentencing range” applicable particular to a (— at -, 1602)

offense 115 S.Ct. at procedural changes

but does make or other may indirectly length affect the of time serve, prisoner

that a no violation of the

Ex if *5 Post Facto Clause will be found possibility “spec an of such indirect effect is conjectural.” at -, ulative and ACQUISITION CO., CAVERT d/b/a 115 S.Ct. at 1603. Morales does stand for Company, Cavert Wire proposition that the “effects” of a chal Petitioner, lenged significant measure are within this context, narrow but do not think that it is adopting correct to read Morales as a univer NATIONAL LABOR RELATIONS sally applicable telling, effects test. It is BOARD, Respondent. think, not that Morales was even cited NATIONAL LABOR RELATIONS Artway filed on behalf of excellent briefs BOARD, Petitioner, amicus, supporting the American Civil Jersey. Liberties Union of New panel’s especially effects test is trou- ACQUISITION CO., CAVERT d/b/a bling encompasses it because Company, Cavert Wire community direct effects of the Respondent.

provisions also what but be called their Nos. effects, is, secondary the effects on re- leased sex offenders of actions pri- taken Appeals, States Court of vate citizens who are turn affected Third Circuit. community notification. I doubt whether any Argued reasonably Dec. accurate assessment 1995. likely secondary community effects of notifi- 2,May Decided cation implementation will be unless provisions these permitted in New Jer- sey or sufficiently large elsewhere in a sam-

ple of sufficiently cases over a peri- extended

od of panel time. As the itself seems to however,

recognize, constitutionality provisions likely to be settled

first pre-enforcement batch of challenges.

See 81 at 1250 n. point, F.3d 9. At that it is

doubtful that there will adequate be an em-

pirical basis for determining proba- what the long

ble term effects of notifica-